Defense denies Gov’t claim of “complete falsehood,” but defense said what it said.

Rasmea Odeh is the terrorist member of the military wing of the Popular Front for the Liberation of Palestine who was convicted in Israel in 1970 of the 1969 bombing the SuperSol supermarket in Jerusalem that killed two students, along with the attempted bombing of the British Consulate. Rasmea was released in 1979 in a prisoner exchange for an Israeli soldier captured in Lebanon.

[Graves of Edward Joffe and Leon Kanner Jerusalem, photo by William Jacobson]

Rasmea was convicted of immigration fraud in federal court in Detroit in 2014. The case is back before the trial court for a hearing on whether Rasmea should have been allowed to call a PTSD expert at trial to support the defense that Rasmea’s alleged torture in Israeli prison caused her to falsely answer the U.S. immigration questions. If the court allows the testimony, Rasmea will get a new trial. If the court rejects the PTSD expert testimony, the prior conviction remains in place.

Rasmea then made a motion to modify the mental exam based on the claim that Rasmea would be “triggered” if she had to submit to a mental exam, and also seeking to limit the time of the exam and other conditions. Here is the key portion of Rasmea’s motion to modify [note: Dr. Fabri is Rasmea’s expert][emphasis added]:

Further, the Defense strongly protests the cynically dismissive, false assertion by the Government— accepted whole cloth by the Court – that the Defendant has freely discussed her torture in the past, and thus is not at risk of ‘retraumatization’ or other, additional harm from such an examination. In fact, the statements cited in the Government’s Reply referred to the bombing case against her in Israel, not her torture. While Ms. Odeh did give an interview shortly after her release from prison almost 40 year ago, she did not speak in detail about her torture, and not at all about the sexual assaults. Ms. Odeh has discussed the specific details of her torture, and specifically about the sexual assaults only with Dr. Fabri.

Dr. Fabri now advises the Court, in her attached Affidavit that the risk of Ms. Odeh suffering substantial further mental and emotional trauma from another examination—particularly from an adversarial figm·e, where the need for safety arid trust will be fundamentally important—is very real….

Dr. Fabri is the first and only one to whom Ms. Odeh has related the details of her prolonged torture including the sexual assaults. And, as Dr. Fabri states, there was a substantial period of trust-building before the examination could begin, and repeated emotional reactions by Ms. Odeh that required breaks and even suspension of one of the sessions….

The government listed several examples of Rasmea speaking publicly about her alleged torture in addition to the UN testimony, including her original trial testimony in Israel in 1970, a 1979 interview with the Jerusalem Post, a 1980 interview with Journal of Palestine Studies, and an interview for a 2004 documentary “Women in Struggle.”

The government concludes (emphasis added):

What all of these examples show is that the defendant’s claim that “Dr. Fabri is the first and only one to whom Ms. Odeh has related the details of her prolonged torture including the sexual assaults” is completely false. Rather, the defendant has been able to discuss her alleged torture with a variety of individuals (including males), and in a variety of settings, over the course of many years. In addition, these examples show that the defendant was able to discuss her alleged torture without suffering any ill effects.

In short, it is hard to see how defense counsel made the representation that is the heart of its motion to modify in good faith. And even worse, how defense counsel would be so pejorative towards the Judge in asserting (emphasis added):

Further, the Defense strongly protests the cynically dismissive, false assertion by the Government— accepted whole cloth by the Court – that the Defendant has freely discussed her torture in the past ….

Rasmea’s defense team has just filed its Reply in further support of the motion to modify the mental exam. [full embed at bottom of post, pdf. here.] Incredibly, defense counsel denies saying what it plainly said in the motion (emphasis added):

The defendant’s motion is not based on a “falsehood,” as the government’s response cynically asserts. The Response misconstrues and trivializes the legitimate concerns for the defendant’s welfare, and mental health, raised in the defense motion. The defense did not claim that Ms. Odeh has never talked about her torture by the Israelis during the past 45 years. It specifically acknowledged that Ms. Odeh spoke about her torture when she was first released, and the government has identified two other occasions, at her military trial and in a documentary about the treatment of Palestinian woman prisoners.

Interesting slight of hand by defense counsel, who previously represented to the court that other than a short interview upon release, the ONLY person to whom Rasmea has spoken about the issue was the defense expert (emphasis added):

While Ms. Odeh did give an interview shortly after her release from prison almost 40 year ago, she did not speak in detail about her torture, and not at all about the sexual assaults. Ms. Odeh has discussed the specific details of her torture, and specifically about the sexual assaults only with Dr. Fabri.

Aditionally, the government identified several additional instances, not just the two the defense asserts: The U.N. panel, and a magazine interview, plus the original trial, plus the Jerusalem Post interview just after release from prison, plus Rasmea’s conduct at the Detroit trial where she defied court order in attempting to tell the jury. As the government noted in its opposition to the motion:

At sentencing, the Court found the defendant obstructed justice by raising the issue of torture in violation of the Court’s order not to do so: “THE COURT: I
remember the trial in this case very well. And I spoke with Ms. Odeh before she testified and I said, don’t go into certain things. Do not talk about whether or not you’re guilty or innocent. Do not talk about torture . . . and notwithstanding that, she continuously went into those areas and I remember having to stop her and I actually remember raising my voice, because I don’t normally do that. I don’t usually raise my voice in court, and I had to do that to stop her, and she just
decided what she was going to say and went ahead and said it.” (R. 185: Sentencing Transcript, PgID 2558-59).

Of course, I don’t know how the Judge will react to what clearly was either an outright falsehood or at minimum a misleading representation to the court.

This Judge seems pretty even-tempered, so I’m guessing he will let it slide off, but he shouldn’t.

Isn’t this all about whether she should be required to spend 18 months in the Fed for lying? She should be deported regardless of whether or not she consciously lied on her application. She has admitted as much. Can’t we just save some time and deport her?

Actually I don’t think so, I think her convictions for terrorism would still preclude her from citizenship. but I may be wrong. If the convictions had been known about she would have never been granted citizenship, which is why she lied.

He can pardon all he wants, but the can’t grant defacto citizenship, so if the conviction stands all pardoning her would do is let her off the jail term, she would still be stripped of citizenship and deported, it would just happen 18 months sooner.